Law Practice Essentials

Lawyer-client conflicts are addressed in the Code of Conduct, Rules 3.4-12 to 3.4-14.  The  Code recognizes that lawyers can have relationships with their clients, outside the solicitor-client relationship. However, a lawyer cannot represent a client if there is a conflict between the lawyer’s interest and the client’s interest unless the client consents and it is in the client’s best interests for the lawyer to act (Rule 3.4-12 of the Code).

For example, you may have a personal or economic interest (other than payment of reasonable fees) that conflicts with your client’s interest and impacts the lawyer’s ability to provide unbiased counsel. Your personal circumstances may at times create a risk that you will obtain an improper advantage or benefit at the client’s expense or to the client’s detriment, especially in a business context. You have access to clients’ confidential information and cannot use that information for your own benefit. You must carefully consider your ethical obligations when you, or your relatives, are considering a business transaction of any kind with a client.

Conflicts may also arise when your personal relationships with clients or others affect your representation of the client.  You may be disqualified from acting where the personal relationship with a client, such as a family member, creates the risk that you will lose objectivity and will not discharge duties owed to the court or to uphold the administration of justice.

You should not continue to represent a client in a court proceeding where you have to request the court’s indulgence to correct an error you made. The proper procedure is to report the error to the Alberta Lawyers Insurance Association (“ALIA”) and get their instructions on how to proceed. You are in a potential conflict if you are trying to represent a client’s interests while also protecting yourself from a potential negligence claim.

If a conflict arises in a court or tribunal setting in which you are required to withdraw your services, be sure to follow the procedures governing withdrawal from the process.

Rule 3.4-14 addresses a different form of conflict—where your family member is acting for an opposing party in a dispute. This situation is prohibited and is not curable by consent.

However, where a family member is acting for a party who is in a conflict or potential conflict without being an opposing party in a dispute, you may act, provided that the client consents.

As with other provisions, the onus is on you to prove that full disclosure was made to the client, that the client consented and that you fully disclosed the advantages of independent representation. It is difficult to see how you could prove these matters without a written document, so it is advisable to document all discussions in writing.

For more information, see Practice Pro's (Ontario) document: Managing Conflict of Interest Situations - Appendix 2 Checklist to Identify Conflicts Involving Lawyer's Personal Interest (pages 23-24).

See Practice Pro's document: Beware of the Dangers of Acting for Family and Friends.